Prosecution must prove age in POCSO cases; failure to establish victim's age led to acquittal, highlighting valid consent under misconception as key in sexual assault cases.

JUDGMENT :

S.K. SAHOO, J.

1. The appellant Santanu Kaudi was initially charged on 14.05.2014 for commission of offences under sections 376(i)/506 of the Indian Penal Code (hereinafter, ‘I.P.C.’), section 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereafter ‘1989 Act’) and section 4 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter ‘POCSO Act’) by the learned Sessions Judge-cum-Special Judge, Sundargarh in Special G.R. Case No.15 of 2013. In the midst of trial, the case was transferred to the Court of Additional Sessions Judge -cum- Sessions Judge, Sundargarh where the trial proceeded. After examination of the prosecution witnesses and also recording of the accused statement, charge was re-framed under sections 376(2)(n)/506 of the I.P.C., section 3(2)(v) of 1989 Act and section 6 of the POCSO Act.

The learned trial Court vide impugned judgment and order dated 14.08.2018, while acquitting the appellant of the charges under section 3(2)(v) of the 1989 Act and section 6 of POCSO Act, found him guilty of the offences punishable under sections 376(2)(n)/506 of I.P.C. and sentenced him to undergo rigorous imprisonment for ten years and to pay a fine of Rs.10,000/- (rupees ten thousand), in default, to further undergo rigorous imprisonment for one year for the offence under section 376(2)(n) of the I.P.C. and rigorous imprisonment for a period of two years for the offence under section 506 of the I.P.C. and both the substantive sentences were directed to run concurrently.

2. The father of the victim, namely, Baisakhu Munda (P.W.2) lodged an F.I.R. before the Inspector-in-charge of Sadar police station, Sundargarh on 14.08.2013 stating therein that the victim was aged about seventeen years and she used to go to the jungle for grazing goats everyday and the appellant, who is a co-villager, also used to visit the jungle for the same purpose every day. By giving threat to the victim and also alluring her, the appellant used to keep physical relationship with the victim for which she became pregnant for seven months as on the date of lodging of the F.I.R. It is also stated in the F.I.R. that the appellant was threatening the victim not to disclose such act before anybody or else she would have to face dire consequences for which she did not disclose about the incident before her family members. She was examined by the Asha Karmi, who found her pregnant and when she was asked about the name of the person who made her pregnant, the victim disclosed the name of the appellant before the Asha Karmi.

On the written report presented by P.W.2, Ms. Iti Das (P.W.14), the Inspector-in-charge registered Sundargarh Sadar P.S. Case No.103 dated 14.08.2013 under sections 376/506 of the I.P.C. and directed Kuni Besra (P.W.16), the S.I. of Police, Sadar P.S., Sundargarh to take up investigation of the case.

During the course of investigation, P.W.16 examined the informant, the victim and other witnesses, seized the wearing apparels of the victim under seizure list Ext.4. On 15.08.2013, she visited the spot, prepared the spot map (Ext.11) and on the same day, sent the victim for her medical examination. Dr. Mrs. Lipika Dei (P.W.8), who was attached to the District Headquarters Hospital, Sundargarh as Assistant Surgeon examined the victim and prepared the report (Ext.6) wherein she gave a finding that the victim was having pregnancy for thirty to thirty two weeks and possibility of commission of rape on the victim cannot be ruled out. The appellant was arrested on 15.08.2013 and his wearing apparels were seized as per seizure list Ext.8 and then he was also sent for medical examin